This Petition for Review from the July 1, 1993 Finding and Award of the Commissioner acting for the Fifth District was heard December 2, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the July 1, 1993 Finding and Award of the Commissioner for the Fifth District. It argues on appeal that the commissioner improperly found that the respondent did not notify the Second Injury Fund of the claimant’s disability in a timely manner. We reverse the trial commissioner’s decision.

The claimant suffered a left knee injury on August 9, 1982. She sought total disability benefits retroactively from October 1982 through the time of the formal hearings. A voluntary agreement approved on June 6, 1986 established the compensability of the injury and the claimant’s compensation rate. The employer paid 154.7 weeks of permanent partial disability benefits for a 65 percent disability of the left knee, with maximum medical improvement being reached on March 1, 1988. The employer did not accept the claim for total disability, however, and sought to transfer liability to the Second Injury Fund.

During her childhood, the claimant suffered from poliomyelitis, permanently affecting her right knee. This condition led to overuse of the left knee, resulting in a degenerative joint disease that was present prior to the 1982 work injury. Dr. Beaumont, an orthopedic surgeon who performed an arthroscopy on the claimant in 1984, noted the presence of a degenerative disease, but opined that meniscal tears in the claimant’s knee were caused by the 1982 injury. A subsequent arthroscopy in 1986 revealed a tear of the anterior cruciate ligament that was not present two years earlier, and was caused by prior partial meniscectomies. The claimant consequently required a total left knee replacement on October 26, 1986, which was not entirely successful due to deterioration of the tibia also caused by the 1982 work injury.

The commissioner found that, after her injury at work, the claimant continued to work until April 6, 1983 when she took a leave of absence. Dr. Tormo, an orthopedic surgeon who treated the claimant prior to Dr. Beaumont, found that the claimant was greatly improved on October 25, 1983. Nevertheless, the claimant took a disability retirement on November 1, 1983. Dr. Tormo did not find the claimant totally disabled at any time during his treatment. The commissioner concluded that the claimant’s period of total disability extended from the arthroscopy on May 14, 1984 until July 31, 1984, and again from September 24, 1984 onward. He thus found that the 104-week period contemplated by § 31-349 C.G.S. expired on July 5, 1986, rendering the June 19, 1986 notice to the Fund untimely.1 He also found that the payments made by the carrier after March 1, 1988 were in fact temporary total disability benefits rather than permanent partial disability benefits. The respondent has appealed from this decision.

The only issue raised on appeal is the timeliness of the respondent’s notice to the Fund. The crux of the respondent’s argument is simple. The commissioner found that the claimant was totally disabled from May 14, 1984 until July 31, 1984 and from September 24, 1984 onward, meaning that notice of the claim to the Fund was due on April 7, 1986. Because such notice was not sent until June 19, 1986, the commissioner concluded that notice was untimely filed, and refused to order the transfer of liability under § 31-349. However, the respondent was not presented with a formal claim for workers’ compensation benefits until after the April 7, 1986 date had passed. (The issue of untimely notice under § 31-294c(c) was averted because the respondent had provided the claimant with medical treatment.) Therefore, the respondent never had an opportunity to provide timely notice to the Fund of its otherwise transferable claim.

The problem here instead lies in the application of § 31-349 to the facts of this case as found by the trial commissioner. Section 31-349(b) clearly states that, “[a]s a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days before the expiration of the first one hundred four weeks of disability, notify the custodian of the second injury fund of the pending case and shall furnish to the custodian a copy of the agreement or award together with all information supporting his claim as to the liability of the second injury fund. . . .” We have held that strict compliance with this provision is required in order to transfer liability. Pereira v. Taylor & Fenn Company, 1816 CRB-1-93-8 (decided April 28, 1995), citing Plesz v. United Technologies Corp., 174 Conn. 181, 186-88 (1978).

Under the facts found by the commissioner, there is no dispute that the ninetieth day before the first one hundred four weeks of disability elapsed before the Fund received notice of the claim. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391 (1993). However, it is also undisputed that the claimant did not request payment of workers’ compensation benefits until after the timely notice period had passed by. To that end, we note that § 31-349(b) specifically contemplates a “pending case” as the subject of notification to the Fund. If the claimant had not yet requested workers’ compensation benefits, it would appear that there was no case pending.

Moreover, this case differs from the situation in Lillo v. Dichello Distributors, 1843 CRB-3-93-9 (decided April 28, 1995), where the claimant was assigned light duty at a decreased salary five months after his compensable injury, and was found to have reached maximum medical improvement at that time. Even though the claimant only requested benefits for the period preceding his return to light duty, notice to the Second Injury Fund was found to be untimely because “[t]he employer clearly had knowledge of the claimant’s disability based on his physician’s return-to-work limitations, which the employer not only followed, but which also led the employer to decrease the claimant’s annual earnings.”

Here, the claimant’s knee injury took place eight months prior to her leave of absence, and 16 months prior to her disability retirement. Neither of those events was claimed to be the result of her knee injury; rather, the claimant’s retirement was predicated on other medical conditions. Thus, the employer had no way of knowing that the claimant ascribed any disability whatsoever to her knee injury. When the claimant finally did receive medical treatment for her knee condition, her relationship with her employer had long since ended, and her employer had no way of knowing that her knee had become disabled until she filed a notice of claim. Thus, the employer could not have complied with § 31-349 under the facts of this case.

Where perfect compliance with § 31-349 is impossible, we have required employers and insurers to adhere to the notice provision as much as reasonably can be done. Reising v. General Dynamics, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994) (nonexistence of voluntary agreement did not excuse employer from complying with other requirements of § 31-349). This is consistent with the purpose of the notice provision, which is intended to “assist the fund in promptly assessing its potential liability, establishing its financial reserves, and securing a reasonable period of time to investigate and address the claim against it.” Id.; see also Dos Santos v. F. D. Rich Construction, Inc., 233 Conn. 14, 26 (1995). In a case such as this, however, where no claim at all has been filed, it would be impossible for an employer to provide any information to the Fund about that claim before the notice period elapsed. Therefore, we must attempt to give § 31-349 the most reasonable interpretation in light of the policies behind the statute.

We have already recognized the importance of timely notice to the Fund for the purpose of investigating claims. However, the second injury fund legislation itself was intended to “relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment,” specifically where a preexisting impairment combines with a second injury to create a materially and substantially greater disability. Plesz, supra, 185, citing Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 355-57 (1974). To ignore this policy would do injustice to the employer here, as it would be forced to accept liability for the claimant’s entire disability through no fault of its own.

Where a workers’ compensation claim is not filed until after the § 31-349(b) disability period elapses, we believe that the solution most compatible with the aforementioned policies is to give the employer a reasonable time, to be determined by the commissioner, within which to notify the Fund of the pending case. If notice has been provided in a reasonable time, then transfer of liability to the Fund should be allowed. Although this result somewhat compromises the notice period in § 31-349(b), it is the most appropriate solution to this unforeseen and, we hope, rare situation.

The trial commissioner’s decision is reversed. The case is remanded to the Fifth District for a determination of whether the respondent’s notice to the Fund was sent within a reasonable time under the circumstances of this case.

Commissioner Nancy A. Brouillet concurs.

ANGELO L. dos SANTOS, COMMISSIONER, Dissenting. I disagree with the result reached by the majority in this case. It is undisputed that the claimant was in fact disabled for 104 weeks on July 5, 1986, and that the ninetieth day before that date was April 7, 1986. As we noted in Lillo v. Dichello Distributors, 1843 CRB-3-93-9 (decided April 28, 1995), “[t]he Connecticut Supreme Court has held that the 104 week notice period refers not to the number of weeks of benefits paid to the claimant, but rather to the ‘first one hundred four weeks of the claimant’s disability.’ Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391 (1993).” We also stated in Lillo that “[t]he fact that the claimant did not request benefits during this period . . . does not change the fact that he was disabled.”

Both Vaillancourt, supra, and our holding in Lillo clearly require us to determine the § 31-349 C.G.S. notice period based on the first 104 weeks of disability irrespective of whether or not a claim was filed. Here, notice was received on June 20, 1986, over two months late. There is simply no authority in § 31-349 or the caselaw interpreting that statute for this Board to relax its requirements just because the claimant failed to file a claim within the timely notice period. Therefore, I would affirm the commissioner’s decision to dismiss the claim against the Fund.

1 Notice was due 90 days before the end of the 104-week period under § 31-349(b) C.G.S., of course. BACK TO TEXT